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tv   [untitled]    September 14, 2012 5:00pm-5:30pm PDT

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for a rehearing. thank you very much. >> thank you. >> is there anybody else who would like to speak on this item? okay, seeing none, then commissioners, if you have questions, otherwise, the matter is submitted. >> do you have any questions? >> i might have a question if you give me one minute to finish reading the letter from planning.
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>> i have a question for the requestor, are you familiar with the studies that eir reviewed that was submitted as part of the eir and given consideration? >> yes, i am. >> and to what extent is the study you presented distinguishable from those? >> i think that -- i don't know if -- okay, the city did an artificial turf study, it was done in the city. it was done with data from turf manufacturers, it was done -- it was kind of an in-house thing and it was not peer reviewed. we do not believe that that study would stand up under scrutiny. in fact, in the east bay, they looked at that study along with
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other details and data and for their eir for a project they were considering, they said there could be a significant hazard from artificial turf and they discounted it. >> which study? >> the san francisco study. >> okay. >> this is a totally new study and i do believe the data is significant. gene barish is an attorney and she has background -- >> can you help me -- >> i have to look at the study again, it's my understanding it's a study that was former comprehensive during the eir process. >> in what way? >> they analyze add lot more compounds in the turf, they did an analysis of more compounds that were found in the environment, in the environment and the conclusions were
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different, their conclusions were a lot stronger and said this is much more harmful than any other research that was submitted during the eir process so it's currently distinguishable from any other studies you have seen and it was also published in a peer review article, most of the study that is the eir covered were not published in peer reviewed journals, they were either generated as a result of a panel that was selected by the rec and park department so they were not original peer reviewed scientific research, they were reviews of previously existing research and the original research was not considered in the eir, just the review was considered, is this is one of the only studies that comes directly pr the source and i think it's more comprehensive based on my recollection. >> you said most of the research that was submitted as part of the eir process was not peer reviewed. was any of it? >> frankly, i can't tell you that off the top of my head.
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if i remember correctly, i don't believe there was one peer reviewed article in any of the eir research but i can't tell you that categorically. >> okay, thank you. i just have a quick question from planning on this. just focusing on this new evidence because that's sort of what we need to for purposes of the rehearing request and in your submission, i know it's signed by somebody else. >> it's signed by bill wika. he's the environmental review officer for the city of san francisco so he's the one in charge of all the environmental review for the county of san francisco and his staff prepared the memo after careful consideration, we received it last thursday, we've reviewed it and issued that response yesterday. >> okay. go ahead. >> and i have -- just to clarify, your letter doesn't address whether the relevancy to
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what's in our jurisdiction to review which is not the eir itself but the local planner zone program, and i want to be clear, that is what is in our jurisdiction, not the eir. >> you are absolutely correct that what we have right now is a rehearing request on the local coastal permit in the coastal zone process, the environmental review has been to the board of supervisors, they have jurisdiction over that, they have considered that, we prepared this response because we did receive the letter last week and we wanted to have this in the file for this application. >> thank you. >> okay, thanks. >> so, i guess -- go ahead. >> yeah, we're in. >> okay, so my feeling is while this study may or may not be
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relevant to an eir process, that is not what is in our jurisdiction to decide here, so perhaps if there is an appeal process for that or a rehearing or a reopening of that, that this would not be setting to do that and for that reason, i would vote to deny the rehearing request. i also want to address the two studies that were submitted at the time, or the two documents that were submitted at the time of the original hearing on august 1, and at the time, what i remember is that they were submitted on the date of the hearing, however, they were considered at least by me during that vote and they would not have changed my opinion on that vote at the time. >> on that note, i wanted to
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ask if a request was made to extend out the briefing in order for the board to have additional time to review those materials. >> no, i didn't know you could do that. i thought we were set with the schedule we have. >> thank you. >> i certainly would have. >> okay. >> i concur and i guess one way for me to look at it too is we're supposed to consider if there are new facts, this is a new study but i can't determine that this is new facts presented. i'm certain there will continue to be studies of all kinds on this kind of material, but i would go with the recommendation that this does not shed any new light at this point. >> for purposes of our standard
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for rehearing request, i think i would echo the sentiments of my co-commissioners and on that basis not withstanding my sympathies and my view of the compelling arguments made by the requestors, i would move to deny the rehearing request. >> okay, thank you. >> we have a motion from the president to deny this rehearing request, vice-president absent, commissioner hurtado? >> aye. >> commissioner lazarus? >> aye. >> thank you. er the vote is 3-0, the rehearing request is denied and notices of decision in order for both appeals shall be released now. thank you. >> okay, thank you. we'll move on then to appeal item number 5 which is appeal
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number 12-066, michail kipnis versus the municipal transportation agency division of taxis and accessible services. this is an appeal of revocation on may 18, 2012 of a taxi medallion number 1094, it is on for hearing today and we will start with the appellant. you have 7 minutes. >> good evening, honorable commissioners, i am heidi, attorney for michail kipnis, mr. kipnis has worked in the taxi industry in san francisco for more than 25 years. taxi permit holders are required to drive a minimum of 800 hours or 156 four hour shifts per year, since obtaining his medallion in 1999, mr. kipnis has satisfied that requirement by driving 10
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hour shifts currently on the more lucrative friday and saturday nights, i have a declaration from his regular driver that attests to his schedule and i provided that to the department as well. this means that mr. kipnis drives at least 80 shifts per year to satisfy 800 hours, although mta originally claimed that mr. kipnis had not satisfied his driving requirement for three years, the officer ruled he had fallen short for one year, 2009, the hearing officer declined to accept 74 out of 107 weigh bills that he submitted and because he failed to drive the full 107 hours, the officer up >> -- upheld his
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recommendation. weigh biller ror constitutes such a common regulatory violation that san francisco taxi regulators in past years have given admonish inlets for inaccurate and incomplete weigh bill, apart from an admonishment from the police which does not make clear why they are admonishing him, mr. kipnis never received any type of admonishment or discipline leading up to the recommended revocation and i have copies of this, despite evidence in the contrary, we urge the board of appeal to simply take its word that mr. kipnis had not met his driving requirements, they must provide hard evidence that oversight agencies such as yours can understand, bah mta's exhibit a in their brief, paragraph 8, the investigator's
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declaration reads, and i quote, "after reviewing the records in the case of mr. kipnis, i do not believe that mr. kipnis had not..[reading].. because unsuspected auditors had not seen his unsuspected..[reading].. up to now". just like errors that taxi drivers make on weigh bills, mta made an error, this is the same mta that's asking the board to simply trust them, the distrust approach hasn't worked in police practices and it shouldn't be allow ined a regulatory agency either, there's too much at stake, although the death penalty isn't on the table, losing
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their livelihood is a serious blaoe to someone who's worked if the industry for 25 year and is who hope tos require in the industry, that's a whole lot of power in the hands of mta and they should be held to a high standard to prove their case. the sfmta has made self-evidence errors during its investigation, additionally, sfmta is in the best position to prove that mr. kipnis drove during the time claimed. instead of looking for that potential exculpatory evidence, mta was intent on proffering that mr. kipnis had failed to meedriving requirements, more over, mta apart from itself investigators has somehow become inbound, we ask the board to reject that argument as handwriting analysis is an inexact science
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and even experts make mistakes, to allow mta without any credentials sets a very dangerous precedent indeed. even the hearing officer joined in this to find some excuse to revoke mr. kipnis but decline tog accept 74 out of 107 weigh bills that he submitted, largely in the basis that certain weigh bills were more orderly than others, he would have left 33 shifts to his credit but somehow those 33 shifts then became 31 shifts as written up in the hearing officer's opinion, and then rather than use the standard of 800 hours, the hearing officer elected to use the 366 shift driving requirement saying that mr. kipnis fell short. this mixes apples with oranges or shifts with hours, and i
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will note that the plain language of the transportation code relies on a percentage of hour short, it's not based on shift, noered did mr. kipnis use the shift standard, finally i note that according to the 2000 admonishment from the police, the driving requirement has changed over the years, they have to show evidence of driving a minimum 105 four hour shifts per year and i have copies of the admonishment for your convenience. in conclusion, the sfmta has failed to make its case and has made too many sloppy errors that look bad for them, we urge this board to uphold the public trust in government and to reject the proposed revocation, additionally, since our understanding is that this board can only reject or accept the penalty proposed and since
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the monetary fine is part and parcel of it, we highly recommend that the strangely calculated monetary penalty would also be overturned. i'm available to answer questions, mr. kipnis, the permit holder is here as well, and mr. boris whose declaration is here is available to answer questions that this board may have for him as well as if the department wishes to cross examine him. >> thank you. >> may i submit mr. shamis's deck -- declaration. >> this should have been part of the package for your declaration. >> why was this not submitted? >> i just met mr. shamis tonight. >> okay. >> and you've provided a copy to mr. murray. >> yes, i provided a copy to
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him before this item was called. >> okay. >> mr. murray? >> good evening, commissioners. jarvis murray, this matter relates to the revocation of mr. kipnis' medallion, he had two opportunities to address his concerns regarding his driving requirement and as ms. mason stated, because mr. kipnis is a medallion permit holder, he is required to drive 108 hours or [inaudible] shifts each year. each year, we do an audit and that audit is conducted by scott leon, of every
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medallion's weigh bill, as part of that audit, mr. kipnis came under our attention because his weigh bills for the prior years were short, upon subsequent visits to gather up his material, he remained short which is where we began our revocation proceedings. as part of our code, we can for good cause revoke a medallion permit holder for not driving because part of the requirement is being a full time driver. we had a hearing in june of 2010 and at that hearing, the sfmta presented the weigh bills that we had from mr. kipnis, we had 31 weigh bills in 2007, 41 for 2008 and 43 for 2009 and for general reference, each shift is generally 10 hours so we assume for sake of argument that each of mr. kipnis' weigh bills represent a 10 hour shift.
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during and after these hearings, mr. kipnis submitted additional weigh bills, now for the second hearing in 2011, we reviewed those weigh bills and we found numerous discrepancies and problems with those weigh bills and i'm going to introduce mr. scott leon who's been the investigator from the very beginning to go over those discrepancies with you within our timeframe. thank you. >> good evening, board members, commissioners, my name is scott leon and i am the investigator for the taxi services. part of my duties is to ensure the compliance of the full time driving requirement for the taxi medallion holders and with this capacity, i also analyze and detect fraud in the industry and gather proper evidence for disciplinary cases. as you can see from the records, i was the investigator who audited mr. kipnis' weigh bills for 2007, 08 and 09, and
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i bring before you regarding the discrepancies for the weigh bills for 2009, it's marked under exhibit c as you can see, in my first visit to the company back in june, 2010, i only found 33 weigh bills, it was after the fact, after the audit was conducted, 79 additional other weigh bills were turned in, i found numerous discrepancies, a lot of them had to do with duplicate ways, a lot of overlapping mileage in the sequence of the weigh bills, from the exhibit, there was at least 23 discrepancies found. i'm not going to go too much into details, perhaps you can take a look at them. in addition to just the
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numerous discrepancies, i would also like to show you some other weigh bills that i found that were somewhat problematic. if you look at these two particular dates here, okay, one is dated may 22, 2009, black and white checker cap in the lowing goe -- logo at the top, it ascertains he drove that shift, if you look at the weigh bills, there's a total of ten fares, the destination, pier 3009 in the amount of 20 dollars, now i'm going to shift over to the other weigh bill,
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now this one is dated may 15, 2009, again, it's got mr. kipnis' signature, if you look at the fares again, it is exactly written the same way but it is reversed, it reverses and it is exactly the same pattern for every single fare which is ten fare ins that particular weigh bill, these are duplicate fa -- fares, it is the same, that's one of the examples that i would like to show. again, for the record, it's may 22 and may 15th, two separate dates. in my next evidence, i would like to show, there's another date driven by mr. kipnis dated may 8, 2009, and again, you can
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compare to this other weigh bill, may 2, 2009. if you look at the total mileage -- >> can you give me a second to get to the place in the packet, please. okay. >> okay, you look at the first box under the mileage, it's 79 thousand 121, that's the starting mileage, that's when the driver first starts off the shift, and when it finishes, it ends at 79 thousand 343, that's the ending miles and the meter reading inside of the taxi cab once the shift ends. now i'm going to shift over to the other weigh bill for the one dated may 8, 2009. if look at the mileage, it's 79 thousand 318, which means it overlaps with the may 2, 2009
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weigh bill, so these are some of the discrepancies that i see and it's numerous and we believe this is a way of deceiving sfmta, with that, i'm going to have mr. murray finish up. >> and just in the interest of time to wrap up, mta stands by the work done by our investigator and we believe this appeal by mr. kipnis should be denied. thank you. >> thank you. is there any public comment on this item? >> actually, counsel, can i ask you, i think one of the points made by the appellant was that there was no progressive disciplinary admonishments, was that practice within mta? can you address that issue, please. >> yes, certainly. the practice was to admonish all the drivers for any issues
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or discrepancies that they may have had, and we still practice that today. we consider mr. kipnis because he had three years in a row based upon our findings originally regarding his driving requirements so it wasn't an issue where he had one bad year, he had an issue of three bad years so we had to move for the egregious behavior versus you had one bad year, let's see if we can work on it. >> but at this point, it's been found that it's been one bad year. isn't that what's in the record, only 2009 was -- >> correct, the hearing officer only found 2009. >> with that information and with that finding, would that change if you were to go back and start over and taking as true the decision by the hearing officer that it's only one bad year, would that then
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suggest to the department that maybe he should receive an admonishment rather than a revocation? >> well, not necessarily because we don't necessarily do the admonishment anymore, we will impose stiff penalties, so at a bare minimum even today if mr. kipnis had this issue and had no other issue with us, we would let him know that it's going to be a fine and/or revocation and likely we would look at mitigating factors whether it would be just the fine or both, but he definitely would have been issued a fine. >> and not a revocation? >> not necessarily, but very likely depending on any mitigating factor that is he could demonstrate. >> okay, thank you. >> do you have a question? >> there does appear to be a pattern of overlapping weigh bills, duplicates in the same
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day. what explanation has been offered for that? i don't know whether to address that to you or to counsel for mr. kipnis. >> or you can both answer it. >> if you have an answer, otherwise, we'll ask ms. mason. >> we have not received an answer other than what was given at the previous hearing which was as part of the finding from the hearing officer, but beyond that, we felt that the answer was inadequate which was typically somewhere along the lines was it was a mistake or i don't know. >> just to clarify, exhibit c is pretty much a complete list of all the so-called mistakes that you found, is that correct? >> correct. >> thank you. >> can we hear from counsel for the appellant on that issue? where did she go? oh, there she is.
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>> i'm sorry, you repeat the question? >> the question was what was the justification for the discrepancies and the file laj -- mileage for instance. er >> apparently everyone makes mistakes, clearly we've shown that mta has made a lot of mistakes in their investigation and they have a perfect situation of people who have advanced degrees, who are working in lighted rooms, who have calculators, who have computers, etc., mr. kipnis is out driving on a busy friday and a saturday night where he's yelling at people and trying to keep it together and trying to keep a record at the same time, and honestly, you know, ultimately we have no objections to the weigh bills that were flagged being thrown out because in the worst case scenario, there would still be 80 weigh bills for that year even if those were all thrown
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out. >> i count 28 findings of mileage overlaps, duplicate dates, etc., it seems to be more than just a couple of mistakes. >> for a one-year period for a driver, it's not that unusual, and again, we believe that a system of progressive discipline should have been used here if it was a matter of not keeping good records, if it's sloppy bookkeeping but the department has really failed to show any additional evidence, and throwing in the arguments that some weigh bills were too pristine or handwriting looks different from this date to that date is really pushing the envelope and actually, i think it

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